Randolph
Perry is a trainer licensed by the New Jersey Board Racing
Association and Trotting Association. He slipped and fell on ice while
working at the Medowlands and sought worker's compensation benefits. He
did not receive wages but billed independently. There was not evidence
that he received either a W-2 or 1099 form. He was held to be an
independent contractor.

Text
of Opinion

This
appeal requires us to construe the meaning of the term “ horse racing
industry employee” as used in N.J.S.A. 34:15-131, a section of
the New Jersey Horse Racing Injury Compensation Board Act (the Act),
codified at N.J.S.A. 34:15-129 to -142.

The
New Jersey State Racing Injury Compensation Board (the Board), appeals
from the judgment of the Division of Workers' Compensation (the
Division), finding that Randolph Perry is a “ horse racing industry
employee,” and thus, entitled to receive workers' compensation benefits
from the Board for injuries he sustained while working at a stable at
the Meadowlands Racetrack. Accordingly, the Division dismissed another
claim petition filed by Perry against Robert Horowitz Stable (Horowitz)
for the same accident because coverage under the Act is primary. N.J.S.A.
34:15-135(d). We reverse.

These
are the salient facts. Perry has been a trainer of horses for
forty-seven years. He is licensed by the New Jersey Board Racing
Association and Trotting Association as a trainer and as an owner. He
trained horses for various owners, charging them approximately $50 a
day. He gets paid on a monthly basis. According to Perry's racing stall
application for the 2003-2004 racing season; he rented five stalls at
the Meadowlands Racetrack. He trained several horses, including two of
which he was a partial owner (twenty-five percent). His wife Donna
Perry, Ken Iulo and K.T. Sacado, owned the three other horses that he
trained. In addition, Perry trained a horse belonging to Horowitz that
was in Perry's rented stall at the time of the accident. Perry
testified that he spent approximately seventy-five percent of his time
caring for horses he partially owned. The other twenty-five percent was
spent training horses owned by others.

On
January 19, 2004, the weather was cold, wet and icy. As he was
opening the barn door where the horses he trained were stalled at the
Meadowlands Racetrack, he stepped on “ a patch of ice under his feet.”
According to Perry, he “ just flipped over, because the door was like
frozen closed.” Perry sustained a serious fracture. He underwent an
open reduction internal fixation procedure. As a result of the
accident, Perry was unable to walk without crutches and could not work.
He underwent additional surgeries to the opposite knee.

Perry
filed claim petition 05-2948 with the Division against Horowitz.
Horowitz answered, admitting Perry was in his employ on the day of the
accident, but denied that the accident arose out of and during the
course of this employment. Six months later, Perry filed claim petition
05-21819 against the Board, alleging that he sustained injuries on
January 19, 2004, during the course of employment as a “ horse racing
industry employee.” The Board answered, and objected to the claim
arguing that Perry was not a “ horse racing industry employee.”

Following
a hearing, the Judge of Compensation found that Perry was a “
horse racing industry employee.” Thus, the Board was held responsible
for all workers' compensation benefits arising out of the January 19,
2004 accident. The judge dismissed the claim against Horowitz.FN1Perry
did not cross-appeal that dismissal. The Board moved for a stay of
judgment. The judge denied the motion. On appeal, the Board contends
that reflecting on the limited purpose and legislative history of the
Act, Perry did not qualify as a “ horse racing industry employee”
because he was a self-employed independent contractor. We agree.

We
begin our analysis by focusing on the legislative findings and
declarations:

The
Legislature finds and declares that, whereas current law already
requires virtually all employers to provide for the payment of workers'
compensation benefits to injured employees, because of the unique
nature of the horse racing industry, difficulties have arisen in
ensuring that coverage is provided to employees. For example,
out-of-State horse owners are sometimes unaware of their obligation to
provide such coverage, or because a jockey may ride the horses of more
than one owner, there may be confusion as to who the responsible
employer is. As a result, serious injuries have been sustained for
which there is no coverage.

It
is, therefore, in the public interest to ensure that workers'
compensation coverage is available to persons employed in the
thoroughbred and standardbred horse racing industries in New Jersey by
collectively securing workers' compensation insurance coverage for such
persons, the costs of which shall be funded by the horse racing
industry, and the assessments for funding that coverage shall be
calculated separately for the thoroughbred and standardbred industries,
based on their respective experience.

[N.J.S.A.
34:15-130.]

The
section of the Act that is the core of this appeal, read as follows at
the time of Perry's injury:As used in this act: ...“ Horseracingindustryemployee” means
a jockey apprentice, or driver engaged in performing services for an
owner in connection with the racing of a horse in New Jersey.... In
addition, atrainerwhootherwisewouldbeconsideredanemployeeoftheownerpursuantto[theWorkers'CompensationAct],FN2
as well as any person assisting such trainer who is licensed or
required to be licensed by the commission, is a horse racing industry
employee for purposes of this act.

Thus,
the definition of a “ horse racing industry employee” excludes
trainers generally, but includes some trainers, i.e., those who would
be considered an employee of the owner as defined by the Workers'
Compensation Act (WCA).

In
Fitzgeraldv.TomCoddingtonStables,
186 N.J.
21 (2006), our Supreme Court analyzed the legislature history and
purpose of section 131 of the Act and held that they support a narrow
interpretation of its coverage. The Court noted that “ under N.J.S.A.
34:15-131, only three categories of persons qualify as a ` horse racing
industry employee.' “ Id.
at 39.Those categories are: (1) jockey, jockey apprentices or drivers;
(2) “ a trainer who otherwise would be considered an employee of the
owner;” and (3) persons who are licensed or required to be licensed by
the New Jersey Racing Commission who assists someone in the first two
categories. Id. at 34.The Fitzgerald plaintiff did not
fit any of the three categories because she worked for a trainer, who
was unquestionably not considered the employee of an owner.

Here,
Perry is wearing two hats. On the one hand, he is an owner. As
such, he would be required to obtain coverage for any of his employees,
if he had any. N.J.S.A.
34:15-134.1. On the other hand, Perry does work with horses owned by
various other people. If he meets the definition of employee pursuant
to the WCA, he would be entitled to workers' compensation coverage by
the Board.

The
WCA defines an “ employee” as follows:

[S]ynonymous
with servant, and includes all natural persons, including
officers of corporations, who perform service for an employer for
financial consideration....

[N.J.S.A.
34:15-36.]

Applying
that definition to Perry's status as a trainer, we must
conclude that he is not an employee of the owners of the horses that he
trains. First, he is not in a “ servant” role with respect to those
owners. Second, although Perry is compensated for his work, he does not
receive wages. There is no evidence in the record that he receives a
W-2 or 1099 form from any of the owners. There are no deductions or
withholdings from his compensation. These would be indicia of
employment. Third, Perry submits a monthly bill to those owners for
whom he has performed services. This is indicative of an independent
contractor. Lastly, Perry's work arrangements do not meet the “ right
to control” or “ relative nature of the work” tests. Lesniewskiv.W.B.FurzeCo., 308 N.J.Super.
270, 280 (App.Div.1998); Pollackv.Pino'sFormalWear&Tailoring, 253 N.J.Super.
397, 407,certif.denied,130 N.J.
6 (1992). We note that Perry rents stalls directly from the Meadowlands
Racetrack in which he performs his work with the horses. Once again,
this is indicative of an independent contractor, i.e. “ one who
carrying on an independent business, contracts to do a piece of work
according to his own methods, and without being subject to the control
of his [client] as to the means by which the result is accomplished,
but only as to the result of the work.” Lesniewski,supra,
308 N.J.Super. at 280.

The
Board also contends that the purpose of the Act is merely “ to fill
a gap in workers' compensation coverage unique to the horse racing
industry,” and this purpose does not apply to a trainer such as Perry,
who had the option to purchase coverage for himself. We agree.

Although
Perry was not required to carry workers' compensation coverage
because he did not have any employees, he could have elected to
purchase such coverage. N.J.S.A. 34:15-36 provides as follows:

A
self-employed person, partners of a limited liability partnership,
members of a limited liability company or partners of a partnership who
actively perform services on behalf of the self-employed person's
business, the limited liability partnership, limited liability company
or the partnership shall be deemed an “ employee” of the business,
limited liability partnership, limited liability company or partnership
for purposes of receipt of benefits and payment of premiums pursuant to
this chapter, if the business ... elects ... to obtain coverage for
[such] person.

Therefore,
Perry does not fall in the unique gap that the Act was designed to
close.

Accordingly, the judgment is reversed and remanded to the Division. We
do not retain jurisdiction.